V. ASHOK vs L. NARASINGA RAO

AGGRIEVED by the order in C.D. No. 2/2003 on the file of District Forum, Vizianagaram, opposite party preferred this appeal.

THE brief facts as set out in the complaint are that the complainant is a practising Advocate having regular income of Rs. 8,000. He consulted opposite party on 22.11.2001 for slight temperature and cough. THE complainant submitted that the Mantoux report taken indicated negative but the opposite party treated him until 21.1.2002 by prescribing tablets (i) AKT, (ii) Seletus, (iii) Callpolsyxy, (iv) Akululit, (v) Deeocent, (vi) Delitnyllor and (vii) Capsules-zest for treatment of tuberculosis. THE complainant submitted that he informed the opposite party that he had no relief and further submitted that he paid Rs. 250 towards fees to the opposte party. The complainant submitted that thereafter he consulted one Dr. Prem Kumar, M.D. Chest Specialist of Andhra Medical College, Visakhapatnam on 21.1.2002 and the said doctor after examination, opined that there was Renal Cell Carcinou of left kidney and referred him to Dr. Chodisetty Subba Rao, Urologist on 22.1.2002 and the Urologist suggested surgery of left kidney and observed that the disease was long neglected and treatment proceeded on wrong lines. The complainant also submitted that he consulted Dr. Ravi Mohan, MD Medicine and D.M.(ONCO) of Visakhapatnam and on his advice, CT scan of the chest and abdomen was done and on examination of the said reports, the said doctor referred him to Indo-American Cancer Institute and Research Centre at Hyderabad. The complainant submitted that he accordingly consulted Dr. Chandra Sekhar of that centre on 29.1.2002 who advised to undergo operation on 31.1.2002 and the operation was performed on 31.1.2002 and left kidney was removed and thereafter the complainant underwent radio therapy till 30th March, 2002. The complainant submitted that had the opposite party diagnosed properly as cancer the same could have been controlled in initial stage and submitted he incurred huge expenditure for his treatment besides his stay with his family members at Hyderabad. Hence the complaint seeking direction to the opposite party to pay Rs. 3,21,650 being the amount incurred for treatment.

Pending complaint, the complainant died on 9.3.2003 and his legal heirs were brought on record as complainants 2 to 6 as per orders dated 4.8.2003 in IA 28/2003.

OPPOSITE party filed counter denying the allegations and contended that the deceased complainant is a known person to him and he treated without charging any fee and such the deceased complainant is not a ''consumer''. He submitted that the deceased complainant approached him with x-rays and report of other tests as per the prescription of one Dr. Madhava Rao and the tests, reports and complaints all pertained to the respiratory problem and as such the opposite party treated him for the said problem. He submitted that the 1st complainant responded to his treatment by gaining weight by 5 kgs. and reduction of ESR (Ery Throcyte Sedimentation rate) and never disclosed any problem to his abdomen. OPPOSITE party submitted that the complainant approached Dr. Ravi Mohan, who is also a chest physician and he prescribed C.T. scan of the chest and x-ray findings and reports of blood test and clinical symptoms were more suggestive of pulmonary tuberculosis and the negative of Mantoux test does not exclude tuberculosis. He also submitted that the minimum course for treatment of tuberculosis is six months but the complainant was given two months treatment and the complainant responded to the treatment and thereafter the complainant did not give an opportunity for review and approached another doctor. OPPOSITE party submitted that the problem of kidney is a subsequent development and that the complainant did not file the C.T. scan of the chest and reports though it was done twice on the advice of the other two doctors. He submitted that the complainant approached him with complaint of cough and slight fever and that there was no negligence on his part and prayed for dismissal of the complaint. Based on the evidence adduced i.e. Exs. A1 to A23 and the pleadings put forward, the District Forum allowed the complaint directing the opposite party to pay a sum of Rs. 2,00,000 towards compensation together with costs of Rs. 1,000.

AGGRIEVED by the said order, the opposite party preferred this appeal. The learned Counsel for the appellant submitted that the District Forum did not consider the fact that the disease was long neglected by the complainant resulting in complication and urgent surgery and that the kidney cancer that led to the surgery and subsequent death was not known to the appellant and the deceased had only complaint about problems related to the chest. He further contended that merely because Mantoux test was negative, it cannot be considered that the treatment for tuberculosis is wrong since it is well established that a negative mantoux report does not exclude tuberculosis. The reports revealed that the deceased responded well to the treatment given by the appellant and the health improved within two months of the treatment. He further contended that illness complained by the deceased is different from the illness for which the surgery was performed by another doctor leading to the death of the deceased and submitted that there is no deficiency of service on his behalf. We have gone through the material on record. The facts not in dispute are that the first respondent/first complainant consulted the appellant for fever and cough on 22.11.2001 and Mantoux test was conducted (Ex. A20) which was negative. Exs. A6 and A7 show the other tests which the appellant had directed the first respondent/first complainant to undergo on 27.12.2001. The appellant prescribed tuberculosis medication and treated the first respondent/first complainant from 22.11.2001 to 21.1.2002. On 21.1.2002 the first respondent/first complainant consulted Dr. Prem Kumar, M.D. and underwent ultrasound scan as per his advice. The report (Ex. A10 on 22.1.2002) showed that there was renal cell carcinoma of the left kidney and the first respondent/first complainant consulted Dr. Subba Rao, Urologist, who also confirmed renal cell carcinoma to the left kidney. The first respondent/first complainant submitted that Dr. Subba Rao suggested immediate surgery. The first respondent/first complainant consulted Dr. Ravi Mohan, M.D. Medicine and D.M.(Onco) at Visakhapatnam and on his advice underwent C.T. scan of the chest and abdomen and found renal cell carcinoma of the left kidney and referred the first respondent/first complainant to Indo-American Cancer Institute. On 31.1.2002 an operation was conducted and the left kidney was removed which is revealed as per Exs. A17 and A18 discharge summary and histopathology reports. The first respondent/first complainant underwent radio therapy till 30.3.2002.

IT is the main contention of the first respondent/first complainant that when he was suffering from renal cell carcinoma, the appellant was negligent in treating him for tuberculosis. The learned Counsel for the respondents/complainants filed written arguments stating that when Mantoux test was negative under Ex. A20, the appellant without conducting any further tests to diagnose the disease of the first respondent, has falsely treated him for tuberculosis when the actual disease was Renal Cell Carcinoma. He relied on the judgment of the Apex Court in IV (2004) CPJ 40 (SC)=VI (2004) SLT 385=(2004) 8 SCC 56 in Smt. Savita Garg v. The Director, National Heart Institute, wherein it was held that- ''when once the complainant has discharged its initial burden that the doctor was negligent, it was for the opposite party to show what treatment he has rendered to prove that he was not negligent.''

AFTER perusing the material on record, we observe that no abdominal disorder symptoms were reported at the time of presentation to warrant the C.T. scan of abdomen. Renal Cell Carcinoma are generally slow growing tumours and the main point for consideration in the instant case is whether the 60 days delay could have changed the stage of the disease? Though there is a wrong diagnosis on behalf of the doctor in treating the patient for a period of two months when the patient ultimately died of Renal Cell Carcinoma, we have to ascertain as to what extent there is a direct nexus between the treatment for tuberculosis and kidney cancer becoming aggravated. The District Forum has rightly held that the appellant/opposite party did not justify his treatment for tuberculosis without conducting any further tests to confirm tuberculosis when Mantoux was negative. Therefore, we are of the considered opinion that the doctor has committed an error in treating the patient for tuberculosis but at the same time the medical literature i.e. "Campbells Urology" shows that kidney cancers are of poor prognosis in general and symptoms are not generally present in early stages as kidneys are deep set in the abdomen. The classical symptoms which are abdominal mass and pain is not very common. Taking into consideration the medical literature and the fact whether 60 days delay could have changed the prognosis or the stage of the disease and the extent of damage, which cannot be positively ascertained, we are of the considered opinion that the compensation of Rs. 2,00,000 granted is excessive and we reduce it to Rs. 1,50,000 while confirming the other aspects of the order of the District Forum.

In the result, the appeal is allowed in part and the order of the District Forum is modified by reducing the compensation awarded from Rs. 2,00,000 to Rs. 1,50,000 while confirming the other aspects of the order of the District Forum. Time for compliance six weeks. Appeal partly allowed.